Bh v. Director of Immigration

HCAL 105/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 105 OF 2014

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JUDGMENT
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INTRODUCTION

1.I have before me an application for judicial review of a decision (“the Decision”) made by the Director of Immigration (“the Director”) contained in a letter dated 2 January 2013 to the applicant refusing his application (“Dependant Visa Application”) made on 17 December 2010 for entry for residence in Hong Kong as a dependent of his wife (“Madam S”).

2.The application for leave to apply for judicial review was made on 27 August 2014, which was outside the upper limit of 3-months for making the application under Order 53, rule 4(1) of the Rules of the High Court.  On 16 September 2014, I granted leave to the applicant to apply for judicial review on consideration of papers only, without prejudice to the Director’s ability to contend at the substantive hearing of the application for judicial review that leave for making the application and/or any relief sought on the application should not be granted on the ground of delay.

3.Five grounds are relied upon by the applicant in support of the application for judicial review, namely:-

(1) the Director misapplied his Dependant Visa Policy (“Policy”) in construing the requirement of “no known record to the detriment of the applicant” (“the No Record Requirement”) as a ground for refusal rather than as a matter which was relevant to a decision whether to grant, or refuse, an application for a dependant visa;

(2) the Director unlawfully fettered his discretion and/or misapplied the Policy by refusing the Dependant Visa Application on the ground that the applicant did not satisfy the No Record Requirement;

(3) the Director failed to take into account relevant considerations of the interests of Madam S and his two stepdaughters;

(4) the Director acted in a procedurally unfair manner by failing to put to the applicant his belief that the applicant could be repatriated to Pakistan to take care of the applicant and Madam S’s respective children in Pakistan and India; and

(5) the Decision was unreasonable in the public law sense.

4.On the other hand, the Director contends that the application for judicial review should be refused on the grounds (i) that the applicant failed to exhaust an alternative remedy, and/or (ii) of delay.

5.Before I turn to consider the various grounds of judicial review relied upon by the applicant and the issues of exhaustion of alternative remedy and delay, I shall first set out the background facts relevant to the present application.

BACKGROUND FACTS

6.The applicant was born in Pakistan in 1969.

7.According to immigration records, the applicant entered Hong Kong in 1992, 1994 and 2002 under three different identities each with a different date of birth.  In view of the anonymity order made by Mr Justice Au on 17 July 2014, the applicant’s three claimed identities will be referred to as “ID1”, “ID2” and “ID3” in this judgment.

8.On 6 May 1992, the applicant entered Hong Kong on the strength of a Pakistani passport bearing the name of ID1 with a date of birth in 1971.  He was permitted to stay as a visitor in Hong Kong until 6 August 1992.  He overstayed in Hong Kong as from 7 August 1992 until he was arrested by the police on 6 July 1993 for the suspected offences of “assault occasioning actual bodily harm” and “breach of condition of stay”.  On 27 August 1993, he was convicted of the offence of “breach of condition of stay” and given a fine of HK$2,000.  He was not prosecuted for the offence of assault occasioning actual bodily harm.  On 13 September 1993, the applicant was repatriated to Pakistan.

9.On 27 March 1994, the applicant entered Hong Kong on the strength of a different Pakistani passport bearing the name of ID2 with a date of birth of 10 February 1972.  He was permitted to stay as a visitor in Hong Kong until 27 April 1994 which was subsequently extended to 2 May 1994.  He again overstayed in Hong Kong as from 3 May 1994.  On 11 July 1994, he surrendered himself to the Immigration Department.

10.In a cautioned interview of the applicant by an officer of the Immigration Department on 14 July 1994, the applicant admitted that he had previously entered Hong Kong under the false identity of ID1 in 1992.  He also claimed that his true identity was ID2 and his date of birth was 10 February 1972.  He was prosecuted for the offences of “breach of condition of stay” and “making a false representation to an immigration assistant” in relation to the use of the false identity of ID1 in 1992.

11.On 28 July 1994, the applicant was convicted of both offences and sentenced to (i) 2 months’ imprisonment suspended for 2 years for the offence of “breach of condition of stay”, and (ii) 6 months’ imprisonment suspended for 2 years for the offence of “making a false representation to an immigration assistant”. Those sentences were ordered to be run concurrently.  On 8 August 1994, the applicant was repatriated to Pakistan.

12.On 16 August 2002, the applicant entered Hong Kong from Mainland China on the strength of yet another Pakistani passport bearing the name of ID3 with a date of birth of 28 December 1969.  He was permitted to remain as a visitor in Hong Kong until 30 August 2002.  He departed from Hong Kong on 22 August 2002.  Between August 2002 and March 2003, he made a total of 23 trips between Hong Kong and Mainland China under the identity of ID3.  The applicant last entered Hong Kong on 30 March 2003 and was permitted to remain as a visitor until 13 April 2003.  He overstayed as from 14 April 2003 and was arrested by the police some 5 years later on 8 June 2008 as a suspected overstayer.

13.The applicant was subsequently referred to the Immigration Department for investigation on 13 June 2008.

14.On 25 June 2008, while he was under detention in the Castle Peak Bay Immigration Centre, the applicant lodged a torture claim.  In passing, it may be noted that the applicant registered a refugee claim with the UNHCR on 9 August 2004 in the name of ID3 but with a date of birth of 20 June 1971.  His refugee claim was apparently closed on 30 December 2006.

15.In a cautioned interview of the applicant by an officer of the Immigration Department on 4 July 2008, the applicant claimed that his true identity was ID3 and admitted to have overstayed since 14 April 2003.  The applicant further stated that he did not disclose ID3 as his true identity when he was previously interviewed on 14 July 1994 because, if he had done so, the immigration officer would know that he was using a false identity.

16.In this connection, it may be noted that in the applicant’s third affirmation filed herein on 12 January 2015, he stated that he told the immigration officer in the cautioned interview on 14 July 1994 that his identity was ID2 because he wanted to return to Pakistan and thought that if he told the officer about his true identity it would complicate matters and he would not be able to return to Pakistan.

17.On 30 July 2008, the applicant was released on recognizance under section 36(1) of the Immigration Ordinance.

18.On 30 May 2011, the applicant was charged with the offence of “breach of condition of stay” for overstaying on 8 June 2008.  His case was first brought before the Shatin Magistracy on 1 June 2011, but has since been repeatedly adjourned pending the outcome of his torture claim and other claims and applications which it is not necessary to set out in detail in this judgment.

19.On 27 July 2012, the applicant’s torture claim was rejected by the Director, and on 5 September 2012 his petition against the Director’s rejection of his torture claim was dismissed by an Adjudicator (Torture Petitions).

20.On 19 March 2013, the applicant, through his current solicitors (Messrs Daly & Associates) wrote to the Director requesting the Director to assess the applicant’s risk of being subjected to torture, persecution or other serious maltreatment, including cruel, inhuman or degrading treatment, upon removal or deportation from Hong Kong.  The assessment of this claim is, I understand, currently still on-going.

The Dependant Visa Application

21.Madam S was born in India in 1966.  She married her first husband in Hong Kong on 19 November 1987.  She had 4 children with her first husband.  They were born in 1990, 1991, 1997 and 1999 respectively.

22.Madam S became a Hong Kong permanent resident on 15 January 1998.

23.On 5 February 2005, Madam S’s first husband passed away.  Her two younger children are living in India under the care of relatives, while her two elder daughters are living in Hong Kong with her.

24.According to the applicant, he met Madam S in or around March 2005, and they began cohabiting in or around 2007.  The applicant and Madam S married on 21 February 2010.

25.On or about 17 December 2010, the applicant made the subject Dependant Visa Application, with Madam S as her sponsor.  The applicant and Madam S were interviewed by an officer of the Immigration Department on 23 February 2011, and documents and information were submitted by them in support of the application between February and June 2011.  Another meeting took place on 28 June 2011, and a field visit of the applicant and Madam S’s matrimonial home was conducted by an officer or officers of the Immigration Department on 11 October 2011.  Further information and documents relevant to the Dependant Visa Application were sought and obtained by the Director in October 2011 and August 2012.

26.An assessment of the Dependant Visa Application was carried out by an immigration officer (“the assessing officer”) in December 2012.  His reasoning and recommendation to refuse the application was set out in an internal file minute M.15 dated 14 December 2012 (“M.15”).  I shall come back to this file minute later in this judgment.  The assessing officer’s recommendation was endorsed by a senior immigration officer (“the endorsing officer”) on 14 December 2012.

27.By a letter dated 2 January 2013 (“the Decision Letter”), the Director informed the applicant that his Dependant Visa Application was refused.  The following reasons were given in the letter for the refusal of the application:-

“ According to the eligibility criteria, a person who wishes to come to the HKSAR for residence to join his/her local spouse as his/her dependant has to meet the requirements which include, amongst other, that there is no known record to his/her detriment.

After careful consideration of all information and circumstances pertaining to your application, I regret to inform you that your application for residence is refused as there are known records to your detriment.  Neither are we satisfied that there are sufficient justifications to treat you as an exception in this case.”

28.It is apparent from M.15 that the “records” to the applicant’s detriment mentioned in the Decision Letter is a reference to (i) the applicant’s overstaying in Hong Kong in 1992-1993, 1994, and since 2003, (ii) his use of false identities (ID1 and ID2) to gain entry into Hong Kong in 1992 and 1994, and (iii) his convictions for the relevant offences in 1993 and 1994 mentioned above.

29.In passing, I should mention that the assessing officer mistakenly stated in M.15 that that the applicant had been charged for two additional offences, namely, “making false representation to an immigration assistant” and “using a false travel document”, arising from his entry into Hong Kong using the false identity of ID2 in 1994, whereas the prosecution had in fact decided to defer laying the additional charges against the applicant.  The circumstances in which the mistake came to be made are explained in the assessing officer’s affidavit filed herein on 24 November 2014.  It is clear from the contents of M.15 that this mistake was not material to the decision made to refuse the Dependant Visa Application.  It is therefore not necessary to consider this matter further in this judgment.

30.To complete the picture, on 6 January 2013, Madam S’s two elder daughters wrote to the Chief Executive requesting him to grant the Dependant Visa Application on humanitarian grounds.  By a letter dated 19 February 2013 to Madam S’s two elder daughters, the Director replied on behalf of the Chief Executive.  In substance, their request was declined.

First ground: misapplication of the Policy

31.The Director’s policy for entry arrangement for persons who wish to enter Hong Kong for residence as dependants is set out in a booklet entitled “Guidebook for Entry for Residence as Dependants in Hong Kong” (“the Guidebook”).

32.The following provisions in the Guidebook are relevant for the present purpose:-

(1)  Under sub-heading “II. Eligibility Criteria” -

“ 3. For a sponsor who is a Hong Kong permanent resident or a resident who is not subject to a limit of stay (i.e. a resident with the right to land or on unconditional stay), the following dependants may apply to join him/her for residence in the HKSAR:

(a) his/her spouse;

(b) his/her unmarried dependent child under the age of 18; and

(c) his/her parent aged 60 or above.

5. An application for admission of a dependant may be favourably considered if:

(a) there is reasonable proof of a genuine relationship between the applicant and the sponsor;

(b) there is no known record to the detriment of the applicant; and

(c) the sponsor is able to support the dependant’s living at a standard well above the subsistence level and provide him/her with suitable accommodation in the HKSAR.”

(2)  Under sub-heading “VI. Other Information” –

“ 15. In general, unless a person has the right of abode or right to land in the HKSAR, he/she requires a visa/entry permit to take up residence as dependant in the HKSAR. While each application is determined on its individual merits, an applicant should meet normal immigration requirements (such as holding a valid travel document with adequate returnability to his/her country of residence or citizenship; be of clear criminal record and raise no security or criminal concerns to the HKSAR; have no likelihood of becoming a burden on the HKSAR, etc.) as well as the relevant specific eligibility criteria detailed above before he/she may be considered for the grant of a visa/entry permit. It should be noted that the eligibility criteria may be subject to change from time to time” (underlining added).

33.In what follows, the “eligibility criteria” set out in paragraph 3 of the Guidebook will be referred to as the “§3 criteria”, and those in paragraph 5 the “§5 criteria”.  It is common ground that the §3 criteria are requirements which must be met before a dependant visa may be granted under the Policy.  In other words, an applicant who fails to satisfy the §3 criteria would simply not come within the Policy: see Murali Duraisamy v Director of Immigration, HCAL 152/2004 (2 November 2005), at paragraph 8 per Andrew Cheung J (as he then was); Gurung Deu Kumari v Director of Immigration [2010] 5 HKLRD 219, at paragraphs 24 to 25 and 30 to 32 per Andrew Cheung J (as he then was).  The issue in the present case is whether the No Record Requirement (being part of the §5 criteria) has, or should be construed as having, the same effect as the §3 criteria.

34.As earlier mentioned, the Director refused the Dependant Visa Application because the applicant failed to satisfy the No Record Requirement.  As I understand it to be the position of the Director, if an applicant fails to satisfy the No Record Requirement, his application would be refused on that ground alone, subject to the Director’s “residual discretion” to permit the applicant to stay in Hong Kong where there are “strong compelling factors or exceptional humanitarian or compassionate circumstances” justifying the exercise of his residual discretion (see paragraph 22 of the affirmation of Wong Mo Cheong Wilson filed on behalf of the Director on 24 November 2014).

35.In the same affirmation, Mr Wong refers to the existing immigration policies or schemes which have been established by the Director catering for different types of application for entry visa or permit to enter and stay in Hong Kong, and explains the rationale behind the Policy as follows:-

“ 15. The dependant policy is part of the overall policy of immigration control dictated by the realities and necessities of Hong Kong’s position as a magnet for migration. One of the main purposes of the dependant policy is to ensure that Hong Kong will continue to attract people with the right talent and skills to come to Hong Kong by giving them the choice of bringing in their dependants to live with them in Hong Kong, while minimising the associated immigration and security risks. The scheme also aims to allow those who are already residing in Hong Kong and are able to provide care and financial support to their dependants to sponsor his/her dependants to come to settle in Hong Kong.

16. Apart from the above, behind the eligibility criteria of the dependant policy is the Director’s commitment to contributing to the security and prosperity of Hong Kong by exercising effective immigration control and keeping out undesirable persons from Hong Kong with a view to maintaining law and order in society. This explains why the ‘no known record to the detriment of the applicant’ consideration under paragraph 5(b) of the Guidebook is an important factor which the ImmD will look into when assessing any dependant application …

20. At all material times, there has been no established guideline or policy that caters for a spouse, parent or relative of a Hong Kong resident or Hong Kong permanent resident, whether they are Chinese or foreign nationals, to enter or stay in Hong Kong for the purpose of family reunion…

21. For reasons stated above, understandably, applications to remain in Hong Kong for family reunion, like other applications for permission to enter or stay in Hong Kong for immigration purposes other than those under the established guidelines and policies abovementioned, are generally refused by the Director in line with the overall restrictive and stringent immigration control policy.”

36.Although the No Record Requirement is said to be an “important” factor which the Director will look into when assessing any application for a dependant visa, it would appear that the Director generally treats the No Record Requirement as a necessary condition to be met for an application for a dependant visa.

37.In so far as the present case is concerned, at paragraph 14.1 of M.15, under the heading of “Consideration and Recommendation”, the assessing officer stated as follows:-

“ Having considered all circumstances of the case, including all the representations, it is recommended refusing the application on grounds of there being known records to the detriment of AP. There is no justifying ground warranting exceptional consideration.”

38.In endorsing the assessing officer’s recommendation, the endorsing officer made the following observation:-

“ According to the records, AP has assumed different identities (ID1-ID3) in Hong Kong and had 3 overstaying records … Having considered the circumstances of the application, including all the representations, the application is refused on ground of there being known records to AP’s detriment. There is no justifiable ground warranting exceptional consideration.”

39.Although both the assessing officer and endorsing officer made a general reference to all the circumstances of the case, the failure to satisfy the No Record Requirement was apparently treated as the “ground” for refusing the application.

40.On a more general level, Mr Jonathan Chang (for the Director) submits that on a true construction of the Policy, taking into account the strict overall immigration control (being a well established and recognised feature of the immigration regime in Hong Kong), the object and purpose of the Policy cannot be properly reflected if one treats the §5 criteria (including in particular the No Record Requirement) as mere considerations, which are juxtaposed with and have to be taken into account along with other relevant factors including family considerations (a matter which I shall come back later in this judgment).

41.In his oral submission to the court, Mr Chang stated in no uncertain terms that both the §3 and §5 criteria are conditions which must be satisfied, and that was the policy which the Director had always applied.  This is consistent with the submission made on behalf of the Director in the recent case of BI v Director of Immigration, HCAL 174/2013 (10 December 2014).  At paragraph 59 of the judgment of Mr Justice Zervos in that case, it is recorded that “[counsel for the Director] argued that paragraph 5 set out general policy conditions or requirements which must generally be satisfied before the Director exercised his general discretion under the policy.”

42.Some support for Mr Chang’s argument may be derived from paragraph 15 of the Guidebook, which states that an applicant should meet normal immigration requirements (which expressly include “clear criminal record[1]”) as well as the “relevant specific eligibility criteria” before the applicant may be considered for the grant of a visa/entry permit.  In this regard, it will be recalled that both paragraphs 3 and 5 of the Guidebook are grouped under “II. Eligibility Criteria” in the Guidebook.

43.This having been said, the meaning of paragraph 5(b) of the Guidebook is, in my view, clear: an application for admission as a dependant “may be favourably considered” if there is no known record to the detriment of the applicant.  This paragraph may be read in the other way round, ie, an application may not be favourably considered if there is a known record to the detriment of the applicant.  However, it does not seem to me to be capable of meaning that an application will simply not be considered if there is a known record to the detriment of the applicant.

44.As a matter of principle, I see no reason why the Director cannot adopt a policy to the effect that the No Record Requirement is to be treated as a necessary condition for an application for a dependant visa.  However, if it is intended to achieve this result, much clearer words should be used.  I may add that a guidebook of this nature, which sets out the Director’s immigration policy intended for general consumption, should be construed without any technicality.

45.For my part, I would read paragraph 5(b) of the Guidebook to mean that the No Record Requirement is an important, but not conclusive, consideration in the Director’s exercise of his discretion whether to grant a dependant visa.  It may be that, in many cases, the Director could justifiably come to the view that the existence of a known record to the detriment of the applicant would override other considerations which the Director regards as being relevant and which may tend to support the application (a matter which I shall return to later in this judgment). What I do not consider the Director is entitled to do, on the basis of the existing Policy as set out in the Guidebook, is to treat the failure of an applicant to meet the No Record Requirement as the end of the application, subject then only to the exercise of the Director’s “residual discretion” as mentioned above.

46.In relation to the proper interpretation of the Policy as expressed in the Guidebook, I am in agreement with the view expressed by Mr Justice Zervos at paragraph 64 of his judgment in BI v Director of Immigration, save that I am unable to subscribe to the suggestion that “[u]pon an applicant coming within one of the three categories of paragraph 3, there appears to be an implicit guarantee that if the three factors in paragraph 5 are satisfied the application is likely to be granted” [underlining added].  In my view, the satisfaction of the three factors in paragraph 5 means no more than that the application “may be favourably considered”, without any implication of any guarantee that the application is likely to be granted.  This having been said, the two formulations may not make much difference in practice.

Second ground: fettering of discretion and/or misapplication of the Policy

47.This ground is effectively the same as the first ground of judicial review.  Once it is concluded that the Director has mis-construed the Policy as expressed in the Guideline and treated the No Record Requirement as a necessary condition for an application for a dependant visa, the Director, acting in accordance with that construction of the Policy to refuse the Dependant Visa Application, would necessarily have fettered his discretion or misapplied the Policy.

Third ground: failure to take into account relevant considerations

48.Mr Philip Dykes SC (for the applicant) argues that the Director, in refusing the Dependant Visa Application, failed to take into account relevant considerations, namely, the interest of Madam S and the applicant’s two stepdaughters.

49.At paragraph 50 of his skeleton argument dated 5 January 2015, Mr Dykes argues that the Director should have considered at least the following factors as matters affecting the applicant’s family:-

(1) whether the removal of the applicant will break the close/genuine bond with Madam S and his stepdaughters;

(2) whether the applicant can reasonably be expected to be able to receive the visa required and to regularly visit Madam S and his stepdaughters in Hong Kong;

(3) whether Madam S, an Indian woman with a stable job and business in Hong Kong (as acknowledged by the Immigration Department), can reasonably be expected to relocate to Pakistan with the applicant following his removal or whether she might face really serious immigration and social obstacles;

(4) whether the applicant can reasonably be expected to care for both his own and Madam S’s children from their previous marriages in Pakistan and India respectively, and in particular being able to care for Madam S’s younger children in India, being Pakistani with no close bond with them; and

(5) whether the applicant is able (physically or otherwise) to obtain a job in Pakistan although his recent skills (which are unrelated to his previous job as a security guard in Pakistan over 12 years ago) are rooted in Hong Kong.

50.Mr Dykes contends that given that the rights and interests of a permanent resident of Hong Kong are involved, the Director cannot say that these rights have been totally excluded by virtue of s11 of the Hong Kong Bill of Rights Ordinance, or Article 41 of the Basic Law.  At paragraph 88 of the notice of application for leave to apply for judicial review dated 27 August 2014 (“the Notice of Application”), it is also argued that the position of Madam S must be considered as a counterbalancing factor in the decision-making process under traditional common law principles.

51.As I understand it, the applicant’s case under this ground of judicial review is based on (i) the “family rights” of Madam S and/or the applicant which it is argued the Director is obliged as a matter of law to take into account (see paragraphs 85 and 86 of the Notice of Application and paragraph 42 of Mr Dykes’ skeleton argument, both referring to the decision of the English Court of Appeal in AB (Jamaica) v Secretary of State for the Home Department [2007] EWCA Civ 1302 which considered the relevance of the Convention rights of the husband of the applicant who was facing deportation from the UK); and/or (ii) discretionary considerations which it is argued the Director ought to take into account in the proper exercise of his discretion.

52.In so far as the applicant’s case is based on the “family rights” of Madam S and/or the applicant, whether under the Hong Kong Bill of Rights or the Basic Law, the same or similar arguments have been considered and rejected by different courts in this jurisdiction on many occasions, including Hai Ho Tak v Attorney General [1994] 2 HKLR 202 (CA), Marilyn Aringo v Director of Immigration, HCAL 96/2004 (5 September 2005), at paragraph 43 per Hartmann J (as he then was); Gurung Ganga Devi v Director of Immigration, HCAL 131/2008 (23 September 2009), at paragraphs 20 to 23 and 27 to 31 per Saunders J; Gurung Deu Kumari v Director of Immigration [2010] 5 HKLRD 219, at paragraphs 40 to 43 per Andrew Cheung J (as he then was); Li Nim Han v Director of Immigration [2012] 2 HKC 299, at paragraphs 12 and 13 per Lam J (as he then was); and more recently BI v Director of Immigration, HCAL 174/2013 (10 December 2014), at paragraphs 46 and 55 per Zervos J.

53.If any further authority is required on this point, I would refer to the decision of the Court of Appeal and that of the Court of Final Appeal in Ubamaka Edward Wilson v Secretary for Security [2011] 1 HKLRD 359 (CA), (2012) 15 HKCFAR 743 (CFA).

54.In the Court of Appeal, Fok J (as he then was) stated at paragraph 135 as follows:-

“ Moreover, there is a long line of cases decided in Hong Kong in which it has been confirmed that the effect of section 11 of the HKBORO and the immigration reservation to the ICCPR is that the provisions of the BOR and ICCPR respectively cannot be invoked to enable those not having the right to enter and remain in Hong Kong to resist removal or deportation.”

55.And in the Court of Final Appeal, Ribeiro PJ stated at paragraph 115 as follows:-

“ Section 11 must be understood to exclude the application of HKBORO and BOR in relation to the exercise of powers and the enforcement of duties under immigration legislation regarding persons not having the right to enter and remain in Hong Kong except insofar as the non-derogable and absolute rights protected by BOR Art 3 are engaged.”

The qualification mentioned by Ribeiro PJ above plainly has no relevance in the present context because “family rights” are neither non-derogable nor absolute.

56.I have therefore no difficulty in rejecting the applicant’s case in so far as it is based on the “family rights” of Madam S and/or the applicant.

57.In so far as the applicant’s case is based on discretionary considerations which it is said the Director is under a public law duty to take into account in the proper exercise of his discretion, Mr Dykes has referred me to the recent judgment of Mr Justice Zervos in BI v Director of Immigration.  There are certainly passages in the judgment of the learned judge which support Mr Dykes’ argument.  For example, at paragraph 66 of the judgment, the learned judge stated as follows:-

“ I should also add that whilst attention has been focused on the right to family life in immigration cases, it nevertheless remains that the affect or impact of a decision on a family and its members may be a relevant consideration that should be taken into account when making a particular decision. There does not have to be a recognised right to family life for family considerations to be taken into account where it is a relevant and important factor in coming to the decision. In my view, in the circumstances of this case, it was appropriate to consider the family circumstances of the applicant and the impact the decision would have on his wife and child who are both resident of Hong Kong. To some extent that was acknowledged in the internal minutes of the Immigration Department even though the family circumstances of the applicant were treated dismissively and therefore not appropriately considered. The family circumstances of the applicant were a relevant consideration that should have been taken into account.”

58.While the above passage may be read as being confined to the facts of that case, and not being intended to have general application, the learned judge’s view on the matter appears more clearly and directly at paragraphs 69, 70 and 73 of his judgment, where the following is stated:-

“ 69. … I have already made it clear that according to the relevant authority, the applicant cannot avail himself of family rights, but he can seek to argue that his family circumstances were relevant consideration that should have been appropriately taken into account and considered.

70. Mr Chan [in] his written submissions addressed the grounds of a review in relation to unreasonableness by addressing the Director’s alleged failure to take account of the impact of refusing a visa upon the applicant’s family unit either on its own or weighed against his criminal convictions. I note that Mr Chan addressed this issue in part by focusing on how a refusal of a visa would impact on the applicant’s family unit. The argument does not address, what I consider to be a pertinent issue, and that is, whether, and to what extent, the family circumstances of the applicant should be taken into account in deciding whether or not to grant a dependant visa. I will say something about this later in my judgment…

73. Mr Chan argued that the Director was not bound to have regard to the applicant’s family circumstances or indeed to any compassionate or humanitarian circumstances and it was open to him to decline to do so, or to have regard to such considerations only to the extent that he felt appropriate in the exercise of his discretion. I do not accept this as a proposition or to be the case” [underlining added].”

59.In my view, this matter should be looked at as a matter of principle.

60.First, it is well established in this jurisdiction that “the legislature has chosen to entrust the high responsibility for and discretions on immigration matters to the Director of Immigration.  It is an important responsibility, given Hong Kong’s unique circumstances, and the discretions conferred are wide.  As is expected from any good decision-maker who is vested with wide discretions, the Director has formulated many policies and guidelines regarding the exercise of his discretions.  The courts have therefore said repeatedly that they will not lightly interfere with the Director’s policies or exercise of discretion.  It represents not only a specific application of the general principle of public law that a court in its public law jurisdiction only exercises a supervisory jurisdiction, and does not sit as an appellate court from the decision of the decision-maker.  But it also represents an acknowledgment on the part of the courts that the legislature, in its wisdom, has entrusted the Director with the unenviable task of manning Hong Kong’s immigration controls”: Gurung Deu Kumari v Director of Immigration [2010] 5 HKLRD 219, at paragraph 20 per Andrew Cheung J (as he then was).

61.This approach is entirely consistent with Article 154(2) of the Basic Law, which provides that “[t]he Government of the Hong Kong Special Administrative Region may apply immigration controls on entry into, stay in and departure from the Region by persons from foreign states and regions”.  For the purpose of this article, it is clear that the reference to the Government of the Hong Kong Special Administration Region is a reference to the executive authorities of the HKSAR (ie the Director in the present context): see Article 59 of the Basic Law.

62.Second, although the Director’s discretion is wide and general, the local jurisprudence establishes that the Director’s exercise of his discretion regarding entry into, stay in and departure from Hong Kong is subject to the supervisory jurisdiction of the court in the following (non-exhaustive) respects:-

(1) where any constitutional rights are engaged which are not excepted by section 11 of the Hong Kong Bill of Rights Ordinance/the Immigration Reservation to the ICCPR: see for example Ubamaka Edward Wilson v Secretary for Security (2012) 15 HKCFAR 743;

(2) where the Director has adopted policies or practices regarding the exercise of his discretion, in which case public law would require the Director to act properly in accordance with such policies or practices: see for example C and Others v Director of Immigration (2013) 16 HKCFAR 280, at paragraphs 42 and 56 per Tang PJ, and paragraphs 73 to 74 and 98 per Sir Anthony Mason NPJ; and Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 (which should be understood as having been decided on the basis of the Government having adopted a policy not to deport a person to a country where that person’s claim that he would be subjected to torture was well-founded, see the explanation given by Sir Anthony Mason NPJ at paragraph 84 of his judgment in C and Others v Director of Immigration);

(3) where the Director’s decision is unreasonable in the Wednesbury sense: see Aguilar Joenalyn Elmedorial v Director of Immigration, FAMV 47/2013 (28 January 2014).

63.Third, “in proceedings for judicial review, the ground of failure to take into account a relevant consideration can only be made out if the decision-maker has failed to take into account a consideration which he is bound to take into account in making that decision”: see Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300, at 339A-B per Litton PJ, citing with approval the decision of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39. Also in Lau Kong Yung v Director of Immigration, at 332G-H, Li CJ stated that “for impugning a decision one is concerned with what the decision maker is bound to consider”.

64.Fourth, it is important to distinguish between three different categories of consideration: (i) those clearly (whether expressly or impliedly) identified by the relevant legislation as considerations to which regard must be had, (ii) those clearly identified by the relevant legislation as considerations to which regard must not be had, and (iii) those to which the decision maker may have regard if, in its judgment and discretion, it thinks it right to do so: see Wing On Co Ltd v Building Authority (1996) 6 HKPLR 432, at 439 per Godfrey JA, citing with approval the judgment of Simon Brown LJ in R v Somerset County Council, ex p Fewings [1995] 1 WLR 1037.  In relation to the third category of consideration, what is and what is not a relevant consideration for a public decision-maker to have in mind is, absent a statutory code of compulsory considerations, for the decision-maker, not the court, to decide: R (AL Rawl) v Foreign Secretary [2008] QB 289, at paragraph 131 per Laws JA.

65.Fifth, in relation to the third category of consideration and to the extent that the Director has decided to take into account any particular factor as being relevant to the exercise of his discretion, the weight that should be given to that factor is likewise a matter for the Director, not for the court: see Qamar Zaman v Department of Immigration, HCAL 145/2002 (13 June 2003), at paragraphs 17 and 18 per Hartmann J (as he then was).

66.Sixth, the Director is under no duty and hence not bound to take humanitarian considerations into account: see Lau Kong Yung v Director of Immigration, at 332G-H per Li CJ.

67.Seventh, it must be borne in mind that the Policy is not a policy for family reunion: Murali Duraisamy v Director of Immigration, HCAL 152/2004 (2 November 2005), at paragraph 20 per Andrew Cheung J (as he then was).

68.The Director’s power to grant a dependant visa to any particular applicant is derived from the general powers conferred on him by the Immigration Ordinance to exercise immigration control, including in particular granting permission to land and remain, and imposing conditions of stay, in Hong Kong.  The legislature does not, expressly or impliedly, require the Director to have regard to the applicant’s family circumstances when deciding whether to grant, or refuse to grant, any permission to remain in Hong Kong.  It follows that the applicant’s family circumstances can only come in under the third category of consideration mentioned above, ie those to which the Director may have regard if, in his judgment and discretion, he thinks it right to do so.

69.To the extent that the judgment of Mr Justice Zervos in BI v Director of Immigration is to be read as supporting the proposition that the Director has a general public law duty to take into account an applicant’s family circumstances in the proper exercise of his discretion whether to grant to him/her a dependant visa, I am in respectful disagreement with such proposition.  In my view, it is generally a matter for the Director to decide what, if any, weight should be given to the applicant’s family circumstances, or any aspect of the applicant’s family circumstances, when deciding whether to grant a dependant visa to that applicant.

70.Returning to the present case, the applicant’s third ground of judicial review is that the Director failed to take into account relevant considerations of the interests of Madam S and his two stepdaughters. Assuming that the underlying premise of this complaint is made out, ie that the Director did fail to take into account those considerations when making his decision to refuse to grant a dependant visa to the applicant, for the reasons given above, I do not consider that the Director was under any public law duty to do so.  I therefore reject this ground of judicial review.

Fourth ground: procedural unfairness

71.Under this ground, the applicant complains that the Director acted in a procedurally unfair manner by failing to put to the applicant his belief that the applicant could be repatriated to Pakistan to take care of the applicant and Madam S’s respective children in Pakistan and India.  The complaint is based on paragraph 13.4 of M.15, which states as follows:

“ According to the information available, [Madam S] has another 2 children (currently 15 and 13 yrs old) studying in India under the care of [Madam S’s] mother. [The applicant] also has 2 children (currently 13 and 11 yrs old) residing in Pakistan under the care of [the applicant’s] brother. As far as the welfare of the tender age children is concerned, parental care to them is considered to be more crucial. While [Madam S] has stable job and business in Hong Kong, [the applicant] may take up the role to take care of their children overseas and may visit [Madam S] in Hong Kong by applying appropriate visa.”

72.In my view, this compliant is a non-starter, for the simple reason that the Dependant Visa Application was refused, not on the ground that the Director thought it was better for the applicant to stay overseas to look after his and Madam S’s children in Pakistan and India respectively, but on the ground (as submitted by the applicant) that the applicant failed to satisfy the No Record Requirement.

Fifth ground: Wednesbury unreasonableness

73.Under this ground, the applicant argues that the Decision was unreasonable in the public law sense, in that it was one which no reasonable decision maker could have made if properly directing himself in law, if seized of the relevant facts and if taking account of considerations which he was bound to take into account.

74.At paragraphs 59 and 60 of Mr Dykes’ skeleton argument, the following facts and matters are emphasised:-

(1) Madam S is a permanent resident of Hong Kong who is able to earn a living and provide for her family (including the applicant) in Hong Kong.

(2) In the interest of maintaining the family unit, it would be unreasonable to expect Madam S, who is an Indian and has been living in Hong Kong for over 20 years with a stable job and business here, to relocate to Pakistan with the applicant.

(3) Madam S has family ties in Hong Kong with her two daughters from her previous marriage living with her here.

(4) The applicant’s immigration convictions and pending charges relate mostly to his 1^st and 2^nd visits, and the risk of re-offending is miniscule if he is granted a visa and becomes a resident.

(5) His offences did not impact any victim, such as with offences against the person or property.

(6)  There would be adverse impact on Madam S and the two daughters in Hong Kong should the applicant be required to leave Hong Kong.

75.Mr Dykes further submits that with respect to the charge of overstaying currently pending against him, the applicant’s decision to return to Hong Kong in 2002 was due to a significant change in circumstances in Pakistan.  Those claimed circumstances, I understand, form the basis of his torture claim.

76.Mr Dykes contends that, on these facts, the public interest in keeping the applicant’s family together outweighs any interest in refusing a visa to the applicant on the ground of his convictions and pending charges, and no reasonable decision maker could have come to a different conclusion without explaining fully why the above family considerations are outweighed by the convictions and charges.

77.In so far as the applicant’s family considerations referred to in paragraph 74(1) to (3) and (6) above are concerned, it is, in my view, important to take into account the fact that at the time of the applicant’s marriage with Madam S in 2010, the applicant was on recognizance under section 36(1) of the Immigration Ordinance(having overstayed in Hong Kong since 2003), and both the applicant and Madam S knew, or ought to have known, that the applicant had no legal right to stay or reside in Hong Kong and there was a risk that he might not be permitted to remain in Hong Kong.  Accordingly, the applicant and Madam S ought to have made plans regarding their place of residence should the applicant not be permitted to remain in Hong Kong.  The difficulties referred to above that the applicant and Madam S now face are at least partly the result of their own failure to make proper plans in advance of their marriage.

78.In so far as the applicant’s convictions and pending charges are concerned, the Director is, in my view, entitled to take the view that they cannot be lightly brushed aside.  In particular, the applicant is a repeated immigration offender, and the use of a false identity to enter Hong Kong is a deportable offence and serious in nature.

79.Although the applicant’s convictions relate to immigration offences committed many years ago, the pending charge of breach of condition of stay relates to his prolonged overstaying in Hong Kong since 2003.  Even if, as Mr Dykes submits, his decision to return to Hong Kong in 2002 was due to some significant change in circumstances in Pakistan (an issue which cannot be determined in these proceedings), I do not see how those circumstances would justify his overstaying in Hong Kong since 2003 and not making a torture claim until after his arrest by the police in June 2008.

80.It is well established that the Wednesbury standard is a high one. Having regard to the Director’s well recognised restrictive or stringent immigration policy, which is dictated by the unique and practical circumstances in Hong Kong, and the importance of exercising effective immigration control with a view to maintaining law and order in the society and minimising immigration and security risks, it seems to me that reasonable people may differ on the question of whether the applicant’s adverse records outweigh the factors relied upon by him in support of his application for a dependant visa.

81.In all, I do not consider that the Decision is one which no reasonable decision maker could have made on the facts of the present case.

Exhaustion of alternative remedy

82.The Director points out that the applicant could have pursued an alternative remedy, namely, by lodging an objection under section 53 of the Immigration Ordinance for a review of the Decision by the Chief Executive in Council.  This much cannot be disputed.

83.It is well established that an applicant is generally required to exhaust available alternative remedies before seeking the court’s intervention by way of judicial review, and it is only in extraordinary or exceptional circumstances that the court would allow departure from this rule: see Stock Exchange of Hong Kong Ltd v New World Development Co Ltd (2006) 9 HKCFAR 234, at paragraphs 114-117 and 130 per Ribeiro PJ; Stock Exchange of Hong Kong Ltd v Onshine Securities Ltd [1994] 1 HKC 319, at 328G-329H per Power VP; Kwok Ping Sheung Walter v The Law Society of Hong Kong, HCAL 73/2012 (27 September 2013), at paragraph 19 per Au J.

84.However, in considering whether an applicant for judicial review should be required to exhaust all alternative remedies, it is important to take into account the nature and grounds of review, and ask whether the forums for the pursuit of the alternative remedies are suitable for resolving the issues raised by the application for judicial review.

85.In the present case, the application relates to a published immigration policy which is applied by the Director on a daily basis, and the applicant challenges the Director’s interpretation of that policy.  It seems to me that, in such circumstances, it would be more appropriate and efficient for the issue of interpretation, being an issue of law, to be resolved by way of judicial review so that:-

(1) the Director can follow the court’s interpretation in future cases; or

(2) if the Director disagrees with the court’s interpretation, he can take the matter further to a higher court for a more authoritative ruling; or

(3) if the Director accepts the court’s interpretation but considers the policy as so interpreted cannot fully advance the objectives behind the policy, he can take steps to amend, modify or fine-tune the policy.

86.These having been said, I should make it clear that nothing stated herein should be taken as suggesting that wherever an application for judicial review raises some issue of law, it is no longer necessary for the applicant to first exhaust all available alternative remedies.  The nature and grounds of challenge, and all other relevant circumstances, in any particular case must be considered before a decision can be reached on whether an applicant may be permitted to proceed by way of judicial review without exhausting his alternative remedies.

87.In all, I do not consider that the present application should be dismissed on the ground that the applicant has failed to seek a review of the Decision by the Chief Executive in Council pursuant to section 53 of the Immigration Ordinance.

DELAY

88.The Decision under challenge in the present case was communicated to the applicant on 2 January 2013.  It follows that the upper limit of 3-months for making the application for leave to apply for judicial review to challenge the Decision under Order 53, rule 4(1) of the Rules of the High Court expired on 2 April 2013.  The leave application was not made until 27 August 2014.  It is thus clear that there was substantial delay in making the leave application.

89.As earlier mentioned, at the time when I granted leave to the applicant to apply for judicial review, I did so expressly without prejudice to the Director’s ability to contend at the substantive hearing of the application for judicial review that leave for making the application and/or any relief sought on the application should not be granted on the ground of delay.

90.Under Order 53, rule 4(1) of the Rules of the High Court, the time limit for applying for leave to apply for judicial review may be extended by the court where there is “good reason” to do so.

91.Further, under section 21K(6) of the High Court Ordinance, where the court considers that there has been delay in making an application for judicial review the court may refuse to (a) grant leave for the making of the application, or (b) any relief sought on the application, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of any person or would be detrimental to good administration.

92.In R v Criminal Injuries Compensation Board, ex p A [1999] 2 AC 330, at 341, Lord Slynn of Hadley (with whom the other Law Lords agreed) explained the relationship and effect of these two provisions as follows:-

“ (a) On an ex parte application, leave to apply for judicial review out of time can be refused, deferred to the substantive hearing or given. (b) Leave may be given if the court considers that good reason for extending the period has been shown. The good reason on an ex parte application is generally to be seen from the standpoint, as here, of the applicant… It is possible (though it would be unusual on an ex parte application) that if the court considers that hardship, prejudice or detriment to good administration have been shown, leave may still be refused even if good reason for an extension has been shown. (c) If leave is given, then an application to set it aside may be made, though as the Court of Appeal stressed, this is not to be encouraged. (d) If leave is given, then unless set aside, it does not fall to be reopened at the substantive hearing on the basis that there is no ground for extending time under Ord. 53, r. 4(1). At the substantive hearing there is no ‘application for leave to apply for judicial review,’ leave having already been given. (e) Nor in my provisional view, though the matter has not been argued and the question does not arise here, is there a power to refuse ‘to grant . . . leave’ at the substantive hearing on the basis of hardship or prejudice or detriment to good administration. The court has already granted leave; it is too late to ‘refuse’ unless the court sets aside the initial grant without a separate application having been made for that to be done. What the court can do under section 31(6) is to refuse to grant relief. (f) If the application is adjourned to the substantive hearing, the question under both Ord. 53, r. 4(1) (good reason for an extension of time) and section 31(6) (hardship, prejudice, detriment, justifying a refusal of leave) may fall for determination.”

93.In that case, Carnwath J on an ex parte application granted leave but made it clear that there would be an opportunity for the respondent to raise the question of delay.  The learned judge did not in terms rule that there was “good reason for extending the period within which the application shall be made”, nor did he extend the period.  Nevertheless, Lord Slynn considered that the issue of whether there was good reason for an extension of time was concluded by the decision of Carnwath J in granting leave, and that the judge (Popplewell J) hearing the substantive judicial review application had no jurisdiction to reconsider the question of an extension of time, or whether good grounds had been shown under Order 53, rule 4(1) for an extension of time (see 341F-H).

94.It would appear, therefore, that if a judge considering an ex parte application for leave is unsure whether to extend time for making the application, the correct course to take would be to defer the application to the substantive hearing.

95.This having been said, even where the judge has extended the time for making the application and granted leave to the applicant to apply for judicial review, it is still open to the respondent to apply to set aside the ex parte decision granting leave.  I see no reason why, in principle, the setting aside application cannot also be dealt with at the substantive hearing.

96.It would follow from the above discussion that when I granted leave to the applicant to apply for judicial review on 16 September 2014, I should not have indicated that it was open to the Director to contend at the substantive hearing that leave for making the application should not be granted on the ground of delay.  Instead, I ought to have deferred the question of leave to the substantive hearing.

97.In the end, none of the above mattered because Mr Chang made an oral application at the substantive hearing for the leave granted to be set aside.  Mr Dykes did not object to the application being made in that manner, having been forewarned by Mr Chang’s skeleton argument dated 9 January 2015 that the Director took issue with whether time for the applicant to apply for leave should have been extended.  Indeed, the applicant filed a fourth affirmation on 12 January 2015 seeking to explain his delay in making the leave application, and Mr Dykes filed a detailed skeleton argument on the issue of delay dated 13 January 2015.  In these circumstances and having regard to the basis on which leave to apply for judicial review was originally granted, it seems to me plainly correct that the Director should be permitted to apply to set aside leave at the substantive hearing.

98.On the question of whether the leave granted ought to be set aside, I consider the following factors to be most relevant:-

(1) the length of the delay;

(2) the reason(s) for the delay;

(3) the merits of the application; and

(4) the public interest in having the point(s) of law arising in the application resolved by the court.

99.The delay here of over 16 months is obviously a very substantial one.

100.In relation to the reason(s) for the delay, in the Notice of Application, it was stated that the applicant applied for legal aid on 8 February 2013, but he did not obtain legal aid for the purpose of seeking leave to apply for judicial review until 4 March 2014 (some 13 months later).  It would appear, therefore, that a substantial part of the delay was attributable to the time taken in seeking and obtaining legal aid.  However, the mere fact that legal aid or pro bono assistance is not available is generally not regarded as a sufficient basis for an extension of time; it is only one of the factors that the court would consider whether there are good reasons to justify an extension of time notwithstanding the delay: see Fung Elvira Binag v The Secretary for Home Affairs, HCAL 139/2013 (10 March 2014), at paragraph 27 and 28 per Au J; Mui Mei Fung v Secretary for Justice for Commissioner for Labour, HCAL 145/2013 (16 January 2014), at paragraph 29 per Au J; Re Thomas Lai [2014] 6 HKC 1, at paragraph 48(1) per G Lam J.

101.In any event, where an applicant attributes the delay to the process of obtaining legal aid, it is incumbent on him to demonstrate that he had exercised due diligence in the making and processing of the application: Re Thomas Lai, at paragraph 48(2) per G Lam J.

102.In the present case, nothing was said in the Notice of Application, or in the affirmation filed in support of the leave application, to explain what happened during the period of 13 months while the legal aid application was pending.  In particular, it was not explained whether the delay in processing the legal aid application was caused by the Legal Aid Department or by the applicant or by some other factors beyond their control.

103.In my view, if an applicant wishes to rely upon the time taken to obtain legal aid as an explanation for the delay in making his leave application, the applicant should in his notice of application for leave to apply for judicial review provide a full chronology regarding his legal aid application.  Generally, I would also expect the chronology to be verified or confirmed by the relevant legal aid officer who may provide such further information and explanation as may be appropriate or necessary either in a letter or by way of an affidavit: see X v Torture Claims Appeal Board, HCAL 143/2013 (4 September 2014), at paragraph 13 per Zervos J.  I hardly need to point out that an applicant in any ex parte application is required to observe the obligation to make full and frank disclosure, and this obligation should likewise be observed by the legal aid officer.

104.As a matter of fact, further information relating to the course of the applicant’s legal aid application appears in his affirmation filed on 13 January 2015 shortly before the hearing.  The information disclosed in that affirmation suggests that the Legal Aid Department took a long time to process the applicant’s legal aid application. The facts and the issues raised in the present application do not appear to be particularly difficult or complicated.  It may be that the legal aid application could have been dealt with more expeditiously.  However, not having heard any representation by the Director of Legal Aid, it would not be right for me to draw any conclusion or make any criticism against the Director of Legal Aid or his officers.

105.As for the merits of the application, for the reasons stated above, I consider that the present application to be meritorious.

106.As for the public interests involved in having the point(s) of law arising in this application resolved by the court, as earlier observed, the Policy is, I understand, being applied by the Director on a daily basis.  The proper interpretation of the Policy has potential application to a large number of applicants for a dependant visa.

107.Lastly, I should record that Mr Chang made it clear at the hearing that the Director does not contend that, if the leave granted to apply for judicial review is not set aside, relief should nevertheless be refused on the ground that the granting of relief would be likely to cause substantial hardship to, or substantially prejudice the rights of any person or would be detrimental to good administration under section 21K(6) of the High Court Ordinance.

108.Overall, I consider that factors (3) and (4), ie the merits of the application and the public interests involved in having the issue of the proper interpretation of the Policy resolved by the court, outweigh the substantial delay in making the application.  I would not therefore set aside the leave granted to the applicant to apply for judicial review on the ground of delay.

Disposition

109.For the reasons given above, I allow the present application for judicial review and grant an order of certiorari to remove into the court and to quash the Decision.  The Dependant Visa Application is remitted to the Director for re-consideration in accordance with this judgment.

110.As for costs, the applicant has succeeded in two of the five grounds that he relies upon in support of his application for judicial review.  I also take into account the fact that he has been successful in relation to the issues of delay and availability of alternative remedies.  In all the circumstances, I make an order nisi that the Director shall pay 70% of the applicant’ costs, to be taxed if not agreed.  The applicants’ own costs are to be taxed in accordance with legal aid regulations.

111.Finally, it remains for me to thank counsel for the assistance that they have rendered to the court.

Mr Philip J Dykes, SC, instructed by Messrs Daly & Associates, for the applicant

Mr Jonathan Chang, instructed by Department of Justice, for the respondent